have the amount of his debt recouped in damages." For this he cites Jarvis v. Rogers, 15 Mass. R. 389. The principle is also exemplified in Brierly v. Kendall, 17 Q. B. 937. There, although the form of the security was a mortgage, and not a pledge; and although the action was trespass and not trover; yet the substance of the transaction was in close analogy with the present case. There was a loan by the defendant to the plaintiff, secured by a bill of sale of the plaintiff's goods, in which was a reservation to the plaintiff of a right to the possession of the goods till he should make default in some payment. Before any default, the defendant took the goods from the plaintiff and sold them. For this wrong he was liable in trespass; but the measure of damages was held to be, not the value of the goods, but the loss which the plaintiff had really sustained by being deprived of the possession. The wrongful act of the defendant did not annihilate his interest in the goods under the bill of sale; and such interest was to be considered in measuring the extent of the plaintiff's right to damages.

On these authorities we hold that the damages due to the plaintiff for the wrongful conversion of the pledge by the defendant, are to be measured by the loss he has really sustained; and that, in measuring those damages, the interest of the defendant in the pledge at the time of the conversion is to be taken into the account. It follows that the amount is merely nominal, and therefore that the verdict for the plaintiff should stand, with damages 40s.

WILLIAMS, J. I agree with the rest of the court that there was sufficient proof of a conversion; for, although the mere sale of the goods (according to The Lancashire Waggon Company v. Fitzhugh, 6 Hurlst. & N. 502) would have been insufficient, yet I think the handing over of the dock-warrant to the vendees before the time had arrived at which the brandies could be properly sold, according to the terms on which they were pledged, constituted a conversion, inasmuch as it was tantamount to a delivery. Not that the warrant is to be considered in the light of a symbol, according to the doctrine applied to cases of donations mortis causa; it is the means of coming at the possession of a thing which will not admit of corporal delivery. Ward v. Turner,

2 Ves. sen. 431; Smith v. Smith, 2 Stra. 295.

But I cannot agree with my Lord and my learned Brothers as to the other point; for, I think the damages ought to stand for the full value of the brandies. The general rule is indisputable, that the measure of damages in trover is the value of the property at the time of the conversion. To this rule there are admitted exceptions. There is the well-known case of a redelivery of the goods before action brought, which, though it cannot cure the conversion, yet will go in mitigation of damages. Another exception is to be found in cases where the plaintiff has only a partial interest in the thing converted. Thus, if one of several joint-tenants or tenants in common alone brings an action against a stranger, he can recover only the value of his share. So, if

the plaintiff, though solely entitled to the possession of the thing converted, is entitled to an interest limited in duration, he can only recover damages proportionate to such limited interest, in an action against the person entitled to the residue of the property (though he may recover the full value in an action against a stranger). The case of Brierly v. Kendall, which my Lord has cited is an example of this exception. There, the goods had been assigned by the plaintiff to the defendant by a deed the terms of which operated as a re-demise, and, since the defendant's quasi estate in remainder was not destroyed or forfeited by his conversion of the quasi particular estate, the plaintiff, as owner of that estate, was only entitled to recover damages in proportion to the value of it.

With respect, however, to liens, the rule, I apprehend, is well established, that, if a man having a lien on goods abuses it by wrongfully parting with them, the lien is annihilated, and the owner's right to possession revives, and he may recover their value in damages in an action of trover. With reference to this doctrine, it may be useful to refer to Story on Bailments. In § 325, that writer says: "The doctrine of the common law now established in England, after some diversity of opinion, is, that a factor having a lien on goods for advances or for a general balance, has no right to pledge the goods, and that, if he does pledge them, he conveys no title to the pledgee. The effect of this doctrine is, in England, to deny to the pledgee any right in such a case to retain the goods even for the advances or balance due to the factor. In short, the transfer is deemed wholly tortious; so that the principal may sue for and recover the pledge, without making any allowance or deduction whatever for the debts due by him to the factor." After stating that the English legislature had at length interfered, the learned author continues, in § 326,-"In America, the general doctrine that a factor cannot pledge the goods of his principal, has been repeatedly recognized. But it does not appear as yet to have been carried to the extent of declaring the pledge altogether a tortious proceeding, so that the title is not good in the pledgee even to the extent of the lien of the factor, or so that the principal may maintain an action against the pledgee without discharging the lien, or at least giving the pledgee a right to recover the amount of the lien in the damages." But, in the 6th edition, by Mr. Bennett, it is added, "Later decisions have, however, fully settled the law, that a pledge by a factor of his principal's goods is wholly tortious, and the owner may recover the whole value of the pledgee, without any deduction or recoupment for his claim against the factor." And I may mention that I have reason to believe this rule as to liens was acted upon a few days ago in the Court of Queen's Bench. Siebel v. Springfield, 9 Law T. N. S.

325.

But it is said that the maintenance of such a rule in respect of pledges is inconsistent with Chinery v. Viall, mentioned by my Lord. It seems to me, however, that the decision of that case does not interfere

with the general rule as to damages in trover, but only establishes a further exception in the peculiar and somewhat anomalous case of an unpaid vendor, whose right in all cases has been deemed to exceed a lien see Blackburn on Contracts, p. 320. I cannot, however, think that this exception can be properly extended to the case of a pledgee. An unpaid vendor has rights independent of and antecedent to his lien for the purchase-money. But the property of a pledgee is a mere creature of the transaction of bailment; and, if the bailment is terminated, must surely perish with it. Accordingly, it is said in Story on Bailments, § 327, "It has been intimated that there is, or may be, a distinction favorable to the pledgee, which does not apply, or may not apply, to a factor, since the latter has but a lien, whereas the former has a special property in the goods. It is not very easy to point out any substantial distinction between the case of a pledgee and the case of a factor. The latter holds the goods of his principal as a security and pledge for his advances and other dues. He has a special property in them, and may maintain an action for any violation of this possession, either by the principal or by a stranger. And he is generally treated, in judicial discussions, as in the condition of a pledgee." Again, in § 299, "As possession is necessary to complete the title by pledge, so, by the common law, the positive loss or the delivery back of the possession of the thing with the consent of the pledgee, terminates his title." And, further, in the same section, "If the pledgee voluntarily, by his own act, places the pledge beyond his own power, as by agreeing that it may be attached at the suit of a third person, that will amount to a waiver of his pledge." See Whitaker v. Sumner, 20 Pick. R.

399.

It should seem, then, that the bailment in the present case was terminated by the sale before the stipulated time; and, consequently, that the title of the plaintiff to the goods became as free as if the bailment had never taken place. If he had brought an action against an innocent vendee, the passage I have already cited from Story, § 325, demonstrates that he might have recovered the absolute value of the goods as damages. Why should he be in a worse condition in respect of an action against the pledgee who has violated the contract of pledge?

The true doctrine, as it seems to me is, that, whenever the plaintiff could have resumed the property, if he could lay his hands on it, and could have rightfully held it when recovered as the full and absolute owner, he is entitled to recover the value of it as damages in the action of trover, which stands in the place of such resumption.

In the present case, I think it plain that the bailment having been terminated by the wrongful sale, the plaintiff might have resumed possession of the goods freed from the bailment, and might have held them rightfully when so resumed, as the absolute owner, against all the world. And I therefore think he ought to recover the full value of them in this action.

Nor can I see any injustice in the defendant's being thus remitted to his unsecured debt, because his lien has been forfeited by his own violation of the conditions on which it was created.

Rule absolute to reduce the damages to 40s.

DECLARATION.

DONALD v. SUCKLING.

QUEEN'S BENCH. 1866.

[Reported L. R. 1 Q. B. 585.]

That the defendant detained from the plaintiff his securities for money, that is to say, four debentures of the British Slate Company, Limited, for £200 each, and the plaintiff claimed a return of the securities or their value, and £1,000 for their detention. Plea. That before the alleged detention, the plaintiff deposited the debentures with one J. A. Simpson, as security for the due payment at maturity of a bill of exchange, dated 25th August, 1864, payable six months after date, and drawn by the plaintiff, and accepted by T. Sanders, and endorsed by the plaintiff to and discounted by Simpson, and upon the agreement then come to between the plaintiff and Simpson, that Simpson should have full power to sell or otherwise dispose of the debentures if the bill was not paid when it became due. That the bill had not been paid by the plaintiff nor by any other person, but was dishonored; nor was it paid at the time of the said detention or at the commencement of this suit; and that before the alleged detention and the commencement of this suit Simpson deposited the debentures with the defendant to be by him kept as a security for and until the repayment by Simpson to the defendant of certain sums of money advanced and lent by the defendant to Simpson upon the security of the debentures, and the defendant had and received the same for the purpose and on the terms aforesaid, which sums of money thence hitherto have been and remain wholly due and unpaid to the defendant; wherefore the defendant detained and still detains the debentures, which is the alleged detention.

Demurrer and joinder.

Harington, for the plaintiff.

Gray, Q. C. (Gadsden with him), for the defendant.

July 7. The following judgments were delivered:

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SHEE, J. [After stating the pleadings.] This plea sets up a right to detain the debentures, founded on a bailment of pawn by the plaintiff to Simpson, under which Simpson, if the bill should not be paid, had a right to sell the debentures, paying the overplus above the amount of the bill and charges to the plaintiff, — that is, to sell on the plaintiff's account and for his and Simpson's benefit, and a repawn of them by Simpson as a security for a loan to him by the defendant.

It must be taken against the defendant that the debentures were pledged to him by Simpson before the plaintiff had made default; it must be taken, too, that the advance for which the debentures were pledged to the defendant by Simpson was of a greater amount than the debt for which Simpson held them; it is consistent with the facts pleaded, either that it was repayable before or repayable after the maturity of the plaintiff's bill, and that the debentures were pledged by Simpson, along with other securities, from which they could not at Simpson's pleasure, or on tender by the plaintiff of the sum for which they had been pledged to Simpson, be detached; and therefore that Simpson had put it out of his power to apply them by sale or otherwise to the only purpose for which possession of them had been given to him; viz., to secure the payment of his debt and the release of the plaintiff, by the sale of them, from liability on the bill which Simpson had discounted for him.

Whether this pledge to the defendant by Simpson was such a conversion by him of the debentures as destroyed his right of possession in them, and revested the plaintiff's right to the possession of them freed from the original bailment, is the question for our decision.

The contention that a pawnee is entitled to exercise over the chattel pawned to him a power so extensive as the one which this plea sets up, was before the case of Johnson v. Stear, 15 C. B. N. S. 330; 33 L. J. C. P. 130, if it be not now, wholly unsupported by authority.

แล

A pawn is defined by Sir William Jones (On Bailments, pp. 118, 36) to be " a bailment of goods by a debtor to his creditor, to be kept by him till his debt is discharged;" and by Lord Holt (Coggs v. Bernard, 2 Ld. Raym. 913), to be "a delivery to another of goods or chattels to be security to him for money borrowed of him by the bailor;" and by Lord Stair (Institutions of the Law of Scotland, b. i. tit. 13, s. 11), kind of mandate whereby the debtor for his creditor's security gives him the pawn or thing impignorated, to detain or keep it for his own security, or in the case of not-payment of the debt, to sell the pledge and pay himself out of the price, and restore the rest, or restore the pledge itself on payment of the debt; all which is of the nature of a mandate, and it hath not only a custody in it, but the power to dispone in the case of not-payment;" and by Bell (Principles of the Law of Scotland, ss. 1362, 1363; 4th ed. p. 512), "a real right or jus in re, inferior to property, which vests in the holder a power over the subject to retain it in security of the debt for which it is pledged, and qualifies so far and retains the right of property in the pledger or owner."

In the Roman civil law, as in our own law (see Pigot v. Cubley, 15 C. B. N. S. 701; 33 L. J. 134), the bailment of pawn implied what in this bailment is expressed, a mandate of sale on default of payment. Without it, or without, as in the Scotch and French law, a right to have a pledge sold judicially for payment on default made, the security by way of pledge would be of little value. The pawnee is said by Lord Coke, in his Commentaries on Littleton (Co. Litt. 89 a), to have a